Definitions of 'child of the marriage'; adult children; obligation of de facto parent
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 37-116 |
CHAPTER 3
DEFINITIONS OF “CHILD OF THE
MARRIAGE”; ADULT CHILDREN;
OBLIGATION OF DE FACTO PARENT
A. ELEVANT STATUTOY POVISIONS
e definitions of “child of the marriage” in sect ions () and () of the Divorce Act read
as follows:
Definitions
. () In this Act,
“child of the marriage” mean s a child of two spouses or former spouses who, at the materi al
time,
(a) is under the age of majority a nd who has not withdrawn from their charge, or
(b) is the age of majority or over and under their cha rge but unable, by reason of illness, dis-
ability or other caus e, to withdraw from their charge or to obtai n the necessaries of life.
. . .
Child of the marriage
() For the purposes of the definition “child of the ma rriage” in subsection (), a child of
two spouses or former spouses i ncludes:
(a) any child for whom they both st and in the place of parents; and
(b) any child of whom one is the parent and for whom the other stands in t he place of a
parent.
e age of majority in respect of a child means t he age of majority as determined by
the laws of a province where the child resides. e age of majority is eighteen years of age
in six provinces, namely, Alberta, Ma nitoba, Ontario, Prince Edward Isla nd, Quebec, and
R.S.C. (d Supp.), c. , as amended by R. S.C. (d Supp.), c. , S.C. , c. , S.C . , c. , S.C.
, c. .
J.L.L. v. V.L.L., NBQB , Walsh J., citi ng the definition of “age of majority ” in section () of the
Divorce Act.
CHILD SUPPORT GUIDELINES IN CANADA, 2017
Saskatchewan, and nineteen years of age in four provi nces and the three territories, namely,
British Columbia, New Brunsw ick, Newfoundland and Labrador, Northwest Territories,
Nova Scotia, Nunavut, and Yukon. e applicable legislation for determining whether a
child has reached the provincial age of majority i s that of the province in which the child
ordinarily resided during t he relev ant period.
An analysis of whether a child is unable to withdraw from a parent’s “charge” focuses
on whether the child remains fin ancially dependent on the parent. A child is usua lly con-
sidered to have withdrawn from parental charge when he or she has sufficient income to
meet his own financia l needs.
e phrase “at the material time” in the defin ition of “child of the marriage” under
section () of the Divorce Act does not refer to whether a person stands in t he place of a
parent within the meani ng of the definition of “chi ld of the marriage” under section () of
the Divorce Act. It only refers to the prerequisite of an application for child support that the
child must be under the age of majority or must be older and stil l financially dependent on
the parents at the time the application is brought. e proper time for determini ng whether
a person stands in the place of a parent withi n the meaning of the definition of “child of
the marriage” under section () of the Divorce Act is during the marriage when the family
functioned as a unit .
Section () of the Divorce Act, above, defines a “child of the mar riage” and deals with
the entitlement to support. e Federal Child Support Guidelines do not deal with entitle-
ment; they only deal with the amou nt of support.
For the purpose of applying the definition of “child of the marri age” in section () of
the Divorce Act, the age of majority in respect of a child means t he age of majority a s deter-
mined by the laws of a province where the child ordina rily resides, or, if the child resides
outside of Canada, eighteen years of age. A child under the age of majority is presumptively
a child of the marriage. e burden fal ls on the parent to prove on a balance of prob-
abilities that the child ha s withdrawn from his parents’ charge. e fact that a child under
the age of majority has voluntarily left her parent’s home does not, of itself, signify that
the child is no longer eligible for support as a “child of the marriage” with in the meaning
of section () of the Divorce Act but a child under the age of majority who is financially
self-sufficient ceases to be a child of the marriage within the mean ing of section () of the
Divorce Act. It appea rs that any child under the provincia l age of majority satisfies the
definition of “child of the marriage” under section () of the Divorce Act, if that child is
in fact financial ly dependent on his or her parents. e child’s capacity to withdraw from
See D. S. v. W.D.G., BCSC at para. .
Pakoz di v. Pakozdi, BCSC .
V.S. v. D.M.S., BCSC ; Shelley v. Russell, ONSC .
Chaul k v. Aver y, NLTD ; A.W.H. v. C.G. S., [] N.S.J. No. (Q.B.).
Ch artier v. Chartier, [] S.C.R. ; D.B. S. v. S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; Hiemst ra v.
Hiemstra, [] S.C.R . ; N.P. v. I.V., BCSC ; Friday v. Friday, ONSC .
Sherlow v. Zubko, [] A.J. No. (Q.B.).
Divorce Act, s. () (definition of “age of majority”); se e Boisvert v. Boisvert, [] A.J. No. (Q.B.);
R.J.M. v. E. M., BCSC ; Charbonneau v. Charboneau, ONSC .
Sappier v. Francis, NBQB .
J.A.M. v. S. A.J., NSSC ; D.B.B. v. D.M.B., SKCA .
Kallen v. Michaud, MBQB . Compare J.L.T. v. K.L.H., BCSC at para s. –.
V.S. v. D.M.S., BCSC ; M. S.C. v. T.L.C., NSSC .
Chapter 3: Definitions of “Child of the M arriage”; Adult Children; Obligation of De Fac to Parent
their parents’ charge and unwil lingness to do so appears to be irrelevant to the statutory
definition. A chi ld under the provincial age of majority may cease to be el igible for child
support as a “child of the marriage” withi n the meaning of section () of the Divorce Act,
if the child has been l iving with her twenty-year-old boyfriend for seventeen months, has
no intention of returning to the home of either parent and is no longer dependent on her
parents for fina ncial support.
Children under the provincia l age of majorit y who are financially dependent while they
continue with their schooling satisf y the definition of “children of the marriage” under sec-
tion () of the Divorce Act even though they a re alienated from the non-custodial pa rent
who is called upon to pay child support. A divorcing or d ivorced spouse may be ordered to
pay support in respect of an adult child who is unable to achieve sel f-sufficiency by reason
of “illness, d isability, or other cause.” e mere fact that an adult child lacks the ability to
withdraw from parental charge or to obtai n the necessaries of life is not determinative of the
child’s eligibilit y for support; the inability must be shown on the evidence to have arisen or
to continue by reason of an illness, di sability, or other cause recognized by the Divorce Act.
e pursuit of post-secondary education constitutes “other cause” under the definition
of “child of the marriage” in section () of the Divorce Act but each case is fact specific. In
determining whether the pursu it of education is a valid reason for continued dependence, a
court must consider two complex and value-laden questions. e first is whether, considering
all of the child ’s circumstances, the child’s educational pursuits a re reasonable. If so, the court
must next consider whether it is appropriate that the pursuits be financed by the pa rents.
An adult child who is enrolled as a f ull-time student in high school may be found to
be a “child of the marriage” within t he meaning of section () of the Divorce Act, notwith-
standing a “spotty” academic record and prior poor attendance record, where the chi ld is
currently maintai ning a passing average.
A divorcing or divorced spouse can be ordered to pay child support even though he or she
is not the biological parent of the child, if he or she has acted as a pa rent towa rds the child.
A court may direct the tr ial of an issue as to whether a child falls w ithin the definition of
a “child of the marriage” where existing a ffidavit material is insufficient to resolve the issue.
Boisvert v. Boisver t, [] A.J. No. (Q.B .); Longhurst v. Longhurst, [] B.C.J. No. (S.C.); omp-
son v. Ducharme, [] M.J. No. (C.A.); omas v. oma s, NSSC ; Wout ers v . Wout ers,
NWTSC ; Frim v. Brasseur, [] O.J. No. (S.C.J.); Garinger v. ompson, [] S.J. No. (Q.B.);
Compare Wigmore v. Wigmore, [] P.E.I.J. No. (T.D.); Ladissa v. Ladissa, [] O.J. No. (C.A.). See
also S.A .F. v. R.A.M., SKQB (application under e Family Maintenance Ac t, , S.S. , c. F-.).
Chaulk v. Avery, NLTD ; Wout ers v. Woute rs, NW TSC .
Marsh v. Marsh, [] B.C.J. No. (C.A.); Pritti e v. Dorey, BCSC .
Divorce Act, s. () (definition of “child of the marriage”); Rebenchuk v. Rebenchuk, MBCA ; Sher-
low v. Zubko, [] A.J. No. (Q.B.). See also Dumont v. Dumont, BCSC (application under
the B.C. Family Law Act, S.B .C. , c. ).
Ethier v. Skrudla nd, SKCA .
Montalto v. Montalto, ABQB ; V.S. v. D.M.S., BCSC ; Rebenchuk v. Rebenchuk,
MBCA ; D.W.M. v. M.A.B., NBQB ; Hawc o v. Myers, [] N.J. No. (C.A .); MacLennan v.
MacLennan, [] N.S.J. No. (C.A.); Szitas v. Szitas, ONSC ; Cusack v. Cusack, [] P.E .I.J.
No. (S.C.); Geran v. Geran, SKCA ; see Sect ion E, below in this chapter.
Bobyn v. Bobyn, BCSC at pa ra. , Donegan J., citing Nordeen v. Nordeen, BCCA .
P.G.B. v. J.L .T., [] A.J. No. (Q.B.).
See Sect ion J, below in this chapter.
Laroque v. Misling, [] N.W.T.J. No. (S.C.); Akert v. Akert, [] S.J. No. (Q.B.).
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